A.G. Cooper’s Role

The Silk Plant Forest Truth Committee believes that Cooper, by his actions in this case, has broken trust with the people of North Carolina by not fulfilling his obligation as a prosecutor.

Due to allegations of wrongdoing against the Forsyth County District Attorney’s Office, Attorney General Roy Cooper, since 2008, has filled the prosecutor’s role for all the proceedings in the Silk Plant Forest case, including Smith’s Motion for Appropriate Relief (Forsyth Superior Court, 2008), Petition for a Writ of Habeas Corpus (US Federal Court, 2010), Motion to Vacate Conviction (2013).

Cooper, thus far, has used the resources of his office (our tax money) to  stubbornly defend the conviction of Kalvin Michael Smith.

Two independent reviews of the investigation and trial record have been conducted since the 2008 Motion for Appropriate Relief. The Silk Plant Forest Citizens Review Committee, staffed by Lieutenant Joseph Ferrelli and Sergeant Chuck Byrom–each with over 28 years tenure–concluded that “at critical stages in the investigation the investigators failed to follow procedures which, if followed, would have enhanced the reliability and completeness of the information that was provided to the prosecutors and ultimately to the court. For this reason the Committee does not have confidence in the investigation, the information in question, or the result of the investigation. “Further,” the Committee concluded “…we are aware of no credible evidence that Kalvin Michael Smith was at the Silk Plant Forest Store in Winston-Salem, North Carolina, on December 9, 1995, at or about the time that the crime for which he was charged was committed.”

Former F.B.I. Director Christopher Swecker in charge of Criminal Investigations, after a 16-month legal review of the investigation of the SPF case, agreed with the SPFCRC when it expressed “no confidence in the original investigation,” saw no reason to drop Kenneth Lamoureux as a suspect, and noted “the mistakes, procedural violations, lost evidence, unsound practices and possibly untrue testimony in multiple legal proceeding cast doubt on crucial evidence that ultimately formed the basis for the trial jury’s conviction of Smith.” Consequently, Swecker concludes, “It is the opinion of this reviewer that due to the flawed nature of the original investigation only a new trial that considers the full record and evidence not available, misrepresented or omitted in the original trial will provide the full measure of justice the Community of Winston-Salem and every accused defendant deserves.”

Cooper was sent these reports—twice (June 2012 and November 2012); he did not respond and refused to meet with the investigators, Ferrelli, Byrom, and Swecker, although he had hired Swecker to investigate and make recommendations about alleged malfeasance by the State Bureau of Investigation Forensics Lab. Swecker’s investigation reported several hundred cases of malfeasance that violated the constitutional rights of defendants, and Cooper followed his recommendations. Strangely, in the SPF case, Cooper has, thus far, ignored Swecker’s review. In fact, his assistants have strenuously argued in federal court to exclude Swecker’s report from the trial record.

The Silk Plant Forest Truth Committee believes that Cooper, by his actions in this case, has broken trust with the people of North Carolina by not fulfilling his obligation as a prosecutor–obligations spelled out in the NC Bar Association’s Code of Ethics and his Oath of Office, which require him to be “a minister of justice and not simply an advocate; the prosecutor’s duty is to seek justice, not merely to convict…” and since “In our system of criminal justice, the accused is to be given the benefit of all reasonable doubt….Further, a prosecutor should not intentionally avoid pursuit of evidence merely because he or she believes it will damage the prosecutor’s case or aid the accused.” (NC Bar Code of Ethics, Rule 3.8, Comment 1 & 2 excerpted). In addition, Cooper, upon taking office swore, “I will, in the execution of my office, endeavor to have the criminal laws fairly and impartially administered, so far as in me lies, according to the best of my knowledge and ability; so help me, God.” (NC General Statutes, Chapter 11, Oaths, Attorney General, State District Attorneys and County Attorneys)

During the course of the legal proceedings to which he was a party, A.G. Cooper responded to questions about his defense of Kalvin’s conviction by saying that it was “under litigation,” so legal ethics required that he not comment. Now that the legal proceedings have–for the time being–come to an end, Cooper has responded saying, “The courts turned him down; there’s nothing I can do,” perhaps hoping that his listeners were ignorant of the very aggressive role his office has played in those court proceedings.

Actually, there is something A.G. Cooper can do. He can do what his oath and the NC Bar Association Code of Ethics require him to do–seek truth and justice for Kalvin Michael Smith and Jill Marker. He can and should join with Kalvin Michael Smith and his defense counsel to move swiftly to vacate Smith’s wrongful conviction and to release Smith.

Free Kalvin Now!